Church flouted law by letting trans woman use girls' toilet

Times

3 days ago

The Church of Scotland flouted the law on single-sex spaces by wrongly insisting that biological men could still share female lavatories with girls, it has emerged.
A mother raised concerns that at least one man from an LGBT club was using female facilities at a church-run community centre in Cupar, Fife, where her 11-year-old daughter attended a drama class. She was told by the church that it was 'lawful and often appropriate' for 'women-only spaces to include trans women', despite the Supreme Court ruling in April.
The advice, in correspondence seen by The Times, was issued after an intervention by the Church of Scotland's safeguarding and legal departments, despite the local minister, the Rev Jeff Martin, initially backing the mother and saying her concerns would be dealt with.
The church has claimed that its trans-inclusive stance was based on the advice of 'legal experts' such as the activist group Stonewall and the Good Law Project run by the barrister Jolyon Maugham, which is seeking to overturn the Supreme Court ruling.
On Monday night the Church of Scotland admitted that its advice to the parent was incorrect and it should not have relied on positions taken by partisan groups. It said it now 'supported the right' of women and girls to access single-sex spaces, and suggested trans people should be provided with gender-neutral facilities.
The confusion led to new calls for the Scottish government to take a lead over the issue instead of insisting its policies cannot be changed until the Equality and Human Rights Commission (EHRC) issues formal advice later this year.
Bodies that refuse to implement the Supreme Court ruling have been warned that they face legal action. The Scottish government is facing separate threats of being sued again by For Women Scotland, which defeated ministers in the Supreme Court, and Sex Matters.
Sir Keir Starmer, the prime minister, has told hospitals and government departments they must implement the ruling 'as soon as possible' after some bodies south of the border were accused of deliberate delays.
The correspondence obtained by The Times, and the clarification issued on Monday, show the Kirk has taken three different positions on the issue of single-sex spaces within a matter of weeks.
Every organisation in Britain was told to revisit their equalities policies after the Supreme Court ruled that a woman was defined by biological sex under equalities law, but there is widespread confusion about the implications.
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Bodies such as the Scottish parliament have moved quickly to ban trans women from female spaces, while some schools in Scotland have moved to get rid of gender-neutral toilets.
However, the Scottish government has insisted it must wait until the EHRC issues its formal advice, despite the regulator saying this is not necessary — meaning some policies remain in place that critics claim are clearly unlawful.
A EHRC consultation on the formal guidance was due to close on Monday.
A legal expert, whose work was cited in the Supreme Court judgment, said the Church of Scotland's earlier stance 'completely misstates the law' and claimed the saga exposed the pitfalls of relying on activist groups for advice.
Kelly, the mother of the 11-year-old, who did not want her surname published, went to pick up her daughter from a drama class at the Old Parish Centre in May.
She encountered a man from an LGBT club, which was using the building, in the female lavatory. She said she 'froze' and later raised her concerns with Martin, the church minister.
He was initially supportive and pledged to deal with the matter, but in a second email last week he said that advice from the church's central office meant he had to 'rescind' his first mail. It had been made clear to him that 'a trans woman's use of the women's toilet aligns with her gender identity, and this is lawful and consistent with current best practice'.
Kelly said she was 'gobsmacked' to see that 'men's feelings are taking priority over young girls'.
The EHRC confirmed that access to single-sex facilities should be based on biological sex. The Supreme Court stated in April that, for the purposes of UK equalities law, a biological man cannot become legally female.
LGBT activist groups, many of which previously wrongly suggested organisations had a legal obligation to allow access to single-sex spaces on the basis of gender self-identification, have been accused of spreading misinformation about the ruling.
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Michael Foran, a Glasgow University expert in equalities law, who will soon join the University of Oxford to become associate professor of law, said the Church of SCotland's earlier response to the parent, which also claimed it could not put in place a 'blanket policy' of excluding trans women from female toilets, 'completely misstates the law'.
He said: 'It is contradicted by the express wording of the Supreme Court in its judgment in FWS [For Women Scotland] and by the decades of law on direct discrimination.
'Any service provider operating a service on the basis of self-identification and not biological sex is exposed to significant risk of liability.'
Foran added: 'This response demonstrates the importance of seeking specialist legal advice. Duty bearers under the Equality Act should not rely on lobby groups for their legal advice.'
Trina Budge, a director of For Women Scotland, said she was 'quite astonished' to see 'just how the church has got the law so wrong' in its email to Kelly.
She said: 'We are delighted and relieved that the church has reconsidered its position and taken the time to understand the Supreme Court ruling.
'Many organisations have been misled on the law for a very long time by activist groups and it shows exactly why the Scottish government must stop prevaricating and take the lead on sorting out the confusion that has been allowed to take hold.'
The Church of Scotland expressed 'regret' that the advice it issued to the parent was 'not correct' or in alignment with EHRC advice.
It said: 'The church has been considering the implications of that decision and has not yet issued formal guidance on the issue for congregations, bearing in mind that the EHRC has stated that it was aiming to provide an updated code of practice on services and public functions by the end of June.
'We do not consider that it is appropriate for the church to rely on advice provided by Stonewall and the Good Law Project and we should not have referred to their views on this question.
'We support the right of women and girls to access single-sex spaces and the right of trans women and trans men to access gender-neutral spaces, so that trans people are not put in a position where there are no facilities for them to use.'